Citation Nr: 0613945
Decision Date: 05/12/06 Archive Date: 05/25/06
DOCKET NO. 04-28 315A ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Providence, Rhode Island
THE ISSUE
Entitlement to an increased rating for residuals of a left
ankle sprain, currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Massachusetts Department of
Veterans Services
ATTORNEY FOR THE BOARD
S.M. Cieplak, Counsel
INTRODUCTION
The veteran served on active duty from June 1979 to March
1983.
This matter is before the Board of Veterans' Appeals (Board)
on appeal from a January 2004 rating decision by the RO in
St. Petersburg, Florida, which continued the veteran's rating
of 10 percent for the left ankle sprain residuals and denied
service connection for a right ankle condition and a lumbar
spine condition . A notice of disagreement (NOD) was
received in March 2004. In June 2004, the veteran notified
the RO that he was moving to Taunton, Massachusetts and
requested that the claims file be transferred to the RO in
Providence, Rhode Island; that office currently has
jurisdiction over the appeal. A statement of the case (SOC)
was issued in August 2004, and substantive appeal (via a VA
Form 9, Appeal to the Board of Veterans' Appeals) was
received from the veteran that same month. The substantive
appeal was expressly limited to the rating for the left ankle
sprain residuals.
On his VA Form 9, a hearing before a member of the Board at
the RO (Travel Board hearing). He later requested a video
conference hearing, which was scheduled for February 23,
2006. However, prior to the hearing, he informed the RO that
he would be unable to attend the hearing as he was then
coming down with the flu; he did not appear for the scheduled
hearing. No request was received for rescheduling. Under
these circumstances, the veteran's request for a Board
hearing is deemed withdrawn. See 38 C.F.R. § 20.704 (d)
(2005).
FINDINGS OF FACT
1. All notification and development action needed to fairly
adjudicate the claim on appeal has been accomplished.
2. Even considering the veteran's complaints of pain and
instability, the objective medical evidence reveals that the
veteran experiences no more than overall moderately limited
ankle motion.
CONCLUSION OF LAW
The criteria for a rating in excess of 10 percent for left
ankle sprain residuals are not met. 38 U.S.C.A. §§ 1155,
5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, and
Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59,
4.71a, Diagnostic Code 5271 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duties to Notify and Assist
Initially, the Board notes that, in November 2000, the
Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No.
106-475, 114 Stat. 2096 (2000), was signed into law. See 38
U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002).
To implement the provisions of the law, VA promulgated
regulations at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)
(2003). The VCAA and its implementing regulations include,
upon the submission of a substantially complete application
for benefits, an enhanced duty on the part of VA to notify a
claimant of the information and evidence needed to
substantiate a claim, as well as the duty to notify the
claimant what evidence will be obtained by whom. 38 U.S.C.A.
§ 5103(a); 38 C.F.R. § 3.159(b). In addition, they define
the obligation of VA with respect to its duty to assist a
claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38
C.F.R. § 3.159(c).
The Board finds that all notification and development action
needed to render a fair decision on the claim for increased
rating for residuals of a left ankle sprain has been
accomplished.
In a November 2003 pre-rating notice letter, the January 2004
rating decision, August 2004 SOC, the RO notified the veteran
and his representative of the legal criteria governing the
claim; the rating decision and SOC addressed the evidence
that had been considered in connection the appeal. After
each, they were afforded ample opportunity to respond.
Hence, the Board finds that the veteran has received
sufficient notice of the information and evidence needed to
support the claim on appeal, and has been afforded ample
opportunity to submit information and evidence.
The Board also finds that the November 2003 pre-rating notice
letter satisfies the statutory and regulatory requirement
that VA notify a claimant what evidence, if any, will be
obtained by the claimant and which evidence, if any, will be
retrieved by VA. See Quartuccio v. Principi, 16 Vet. App.
183, 187 (2002) (addressing the duties imposed by 38 U.S.C. §
5103(a) and 38 C.F.R. § 3.159(b)). In the November 2003
letter, the RO notified the veteran that VA was required to
make reasonable efforts to obtain medical records, employment
records, or records from other Federal agencies; the RO
requested that the veteran to identify and provide the
necessary releases for any medical providers from whom he
wanted the RO to obtain and consider evidence. The notice
letter also specified that the veteran should send in any
medical records he had; that the RO would obtain any private
medical records for which sufficient information and
authorization was furnished; and that the RO would also
obtain an pertinent VA records if the veteran identified the
date(s) and place(s) of treatment.
In the decision of Pelegrini v. Principi, 17 Vet. App. 412
(2004), the United States Court of Appeals for Veterans
Claims (Court) held that proper VCAA notice should notify the
veteran of: (1) the evidence that is needed to substantiate
the claim(s); (2) the evidence, if any, to be obtained by the
VA; (3) the evidence, if any, to be provided by the claimant;
and (4) a request by the VA that the claimant provide any
evidence in the claimant's possession that pertains to the
claim(s).
As indicated above, the first three of Pelegrini's content of
notice requirements clearly have been met in this case. With
respect to the fourth requirement, the Board notes that the
veteran has not explicitly been advised to provide any
evidence in his possession that pertains to his claim.
However, the claims file reflects that the veteran has
submitted in support of his claim pertinent medical records
that he had in his possession. Given that fact, as well as
the RO's instructions to him, as noted above, the Board finds
that the veteran has, effectively, been put on notice to
provide any evidence in his possession that pertains to his
claim. As such, and on these facts, the RO's omission is
harmless. See ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549
(Fed. Cir. 1998); Cf. 38 C.F.R. § 20. 1102 (2005).]
Pelegrini also held that the plain language of 38 U.S.C.A. §
5103(a) (West 2002), requires that notice to a claimant
pursuant to the VCAA be provided "at the time" that, or
"immediately after," the Secretary receives a complete or
substantially complete application for VA-administered
benefits. In that case, the Court determined that VA had
failed to demonstrate that a lack of such a pre-adjudication
notice was not prejudicial to the claimant.
In the matters now before the Board, the documents meeting
the VCAA's notice requirements were provided to the veteran
before and after the January 2004 rating action on appeal.
However, the Board finds that, with respect to this matter,
any delay in issuing section 5103(a) notice was not
prejudicial to the veteran because it did not affect the
essential fairness of the adjudication, in that the claim was
fully developed and re-adjudicated after notice was provided.
See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on
other grounds, No. 05-7157 (Fed. Cir. Apr. 5, 2006). In this
regard, as indicated above, in the November 2003 notice
letter, the RO advised the veteran of VA's responsibilities
to notify and assist him in his claims; that notice also
advised him that to support his claim, the evidence must show
that the disability had worsened. Moreover, the January 2004
rating notified the veteran in even greater detail as to what
was needed to substantiate his claim and also identified the
evidence that had been considered with respect to the claim.
After the notice letter, rating action, the veteran was
afforded an opportunity to respond. Thereafter, the RO
readjudicated the veteran's claim on the basis of all the
evidence of record in August 2004, as reflected in the SOC.
Hence, the Board finds that any failure on the part of VA in
not completely fulfilling VCAA notice requirements prior to
the RO's initial adjudications of the claim is harmless. See
ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir.
1998); Cf. 38 C.F.R. § 20.1102 (2005).
More recently, in March 2006, during the pendency of this
appeal, the Court issued a decision in the consolidated
appeal of Dingess/Hartman v. Nicholson, Nos. 01-1917 &
02-1506 (U.S. Vet. App. March 3, 2006), which held that, in
rating cases, a claimant must be informed of the rating
formula for all possible schedular ratings for an applicable
rating code. As regards the claim for increase on appeal,
the Board finds that this was accomplished in the SOC, and
that this suffices for Dingess/Hartman. The Court also held
that VA notice must include information regarding the
effective date that may be assigned. While the RO has not
explicitly provided such notice in this case, such omission
is harmless on these facts; here, the claims for increase
(for already service-connected disability) did not arise out
of a claim for service connection; the Board is denying the
claim for increase (hence, no effective date is being
assigned); and there is no indicia whatsoever that either the
appellant or his representative is challenging any effective
date already assigned (the claim on appeal is limited to a
claim for an increased rating).
The Board also points out that there is no indication
whatsoever that any additional action is needed to comply
with the duty to assist the veteran in connection with the
claim on appeal. The Board notes, initially, that, the
veteran suggested consideration of recent VA outpatient
treatment records. However, those records are of record and
have been considered; hence, no further action in this regard
is warranted. Further, in January 2004, the RO arranged for
the veteran to undergo a VA examination, the report of which
is associated with the claims file. For reasons explained
below, the Board finds that that examination is adequate for
rating purposes. Significantly, neither the veteran nor his
representative has identified, and the record does not
otherwise indicate, any existing pertinent records, in
addition to those noted above, that that need to be obtained.
The Board also finds that the record presents no basis for
further developing the record to create any additional
evidence in connection with the claim on appeal, to include
having the veteran undergo further examination.
Under these circumstances, the Board finds that there is no
prejudice to the veteran in proceeding, at this juncture,
with a decision the claim on appeal.
II. Analysis
Disability evaluations are determined by comparing a
veteran's present symptomatology with criteria set forth in
VA's Schedule for Rating Disabilities, which is based on
average impairment of earning capacity. 38 U.S.C.A. § 1155
(West 2002); 38 C.F.R. Part 4 (2005). When a question arises
as to which of two ratings applies under a particular
diagnostic code, the higher rating is assigned if the
disability more closely approximates the criteria for the
higher rating; otherwise, the lower rating applies.
38 C.F.R. § 4.7. After careful consideration of the
evidence, any reasonable doubt remaining is resolved in favor
of the veteran. 38 C.F.R. § 4.3.
The veteran's entire history is to be considered when making
disability evaluations. See generally 38 C.F.R. 4.1;
Schafrath v. Derwinski, 1 Vet .App. 589 (1995). However,
where the question involves one for an increased rating, the
current level of disability is of primary concern. See
Francisco v. Brown, 7 Vet. App. 55, 58 (1994).
Historically, service connection was established for
residuals of a left ankle sprain pursuant to a January 1993
rating and a 10 percent evaluation was established pursuant
to 38 C.F.R. § 4.71a, Diagnostic Code 5271, pursuant to which
limitation of ankle motion is rated. The present claim was
filed in September 2003.
Under the criteria of Diagnostic Code 5271, moderate
limitation of motion warrants a 10 percent evaluation and
marked limitation of ankle motion warrants a 20 percent
rating, the maximum rating assignable.
Full range of motion of the ankle is measured from 0 degrees
to 20 degrees dorsiflexion, and 0 degrees to 45 degrees in
plantar flexion. 38 C.F.R. § 4.71, Plate II (2005).
Under Diagnostic Code 5270, ankylosis of an ankle warrants a
20 percent rating if the ankle is fixed in plantar flexion at
an angle of less than 30 degrees. Higher ratings of 30 and
40 percent are available for more severe ankylosis and
deformity.
When evaluating musculoskeletal disabilities, VA may, in
addition to applying schedular criteria, consider granting a
higher rating in cases in which functional loss due to pain,
weakness, excess fatigability, or incoordination is
demonstrated, and those factors are not contemplated in the
relevant rating criteria. See 38 C.F.R. 38 U.S.C.A. §§ 4.40,
4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995).
The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be
considered in conjunction with the diagnostic codes
predicated on limitation of motion. Johnson v. Brown, 9 Vet.
App. 7 (1996).
In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41 and 4.42 and
Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has
reviewed all evidence of record pertaining to the history of
the veteran's claim. The Board has found nothing in the
historical record which would lead it to conclude that the
current evidence of record is not adequate for rating
purposes. Moreover, the Board determines that this case
presents no evidentiary considerations which would warrant an
exposition of the remote clinical histories and findings
pertaining to the veteran's disability at issue.
Outpatient treatment records from September 15, 2003 reflect
that the veteran reported pain with range of motion of the
left ankle. However, the examiner observed that the veteran
walked with a normal gait, and he had normal muscle tone.
The veteran also reported left ankle pain in October 2003, at
which time the veteran reported an off and on pulsating type
of pain and sometimes a sharp sticking type of pain in the
left ankle. X-ray showed an osteophyte on the inner aspect
of the medial malleolus which may be impinging the medial
side of the Talus. The veteran was advised to take Naproxen
and to use ankle brace.
In December 2003, the veteran reported significant ankle pain
with ambulation . Pain was worse with rain and cold weather.
He also reported instability that he fell on the day after
Thanksgiving due to ankle weakness and pain. Objectively, he
demonstrated a normal gait and normal tone but reported ankle
pain with range of motion.
The veteran was afforded a VA examination in January 2004.
The veteran reported left ankle flare-ups about twice a week
and lasting up to 6 or 7 hours. He wore an ankle brace
periodically. His work activities are sedentary but his
ankle makes it difficult to climb stairs. On examination, he
walked well and got up on his toes and heels well. The left
ankle had some tenderness on the medial side and some
tenderness over the talocalcaneal ligament on the lateral
side. Ankle motion was recorded as dorsiflexion to 20
degrees and plantar flexion to 50 degrees from a right angle.
Considering the pertinent evidence in light of the above-
noted criteria, the Board finds that the criteria for a
rating greater than 10 percent for residuals of left ankle
sprain are not met.
The treatment records and examination report pertinent to the
current claim clearly reflect that the veteran experiences
pain with motion. The question, however, is the extent of
functional loss resulting from such pain. While the veteran
has taken issue with the results of the January 2004
examination on the grounds that he claims to have experienced
pain throughout range of motion testing, the Board observes
that he was clinically reported as capable of performing
virtually unimpaired range of motion; this is evident when
range motion findings elicited on that examination are
compared with "normal" ranges of ankle motion as set forth
in 38 C.F.R. § 4.71. There is no objective evidence to
contradict these findings. The veteran's treatment records
do not demonstrate any greater range of motion. The Board
notes that the veteran also has been prescribed an ankle
brace for instability. Again, however, that instability is
not objectively shown to impair the veteran's range of
motion. Indeed, the veteran has consistently been described
as having a normal gait.
Given the minimal objective findings-particularly, the
veteran's essentially normal range of motion findings-the
Board determines that, even considering pain on motion and
instability, no more than overall moderate limitation of
ankle motion is shown; such a disability picture is
consistent with the currently assigned 10 percent rating.
In reaching this determination, the Board has considered the
veteran's complaints of ankle pain with prolonged weight-
bearing, and increased on activity and with weather changes.
Even if the Board were to note that, during such flare-ups of
pain, the veteran conceivably, experience greater range of
motion loss than shown objectively during such a flare-up,
there simply is no objective evidence to even suggest that
his pain is so disabling as to warrant the assignment of the
maximum 20 percent rating for severe range of motion loss
under Diagnostic Code 5271. In this regard, the Board notes
that medications and only a periodic need for a brace have
provided relief of symptoms. The most recent 2003 and 2004
VA evaluations do not suggest that the veteran's left ankle
was doing poorly on his current regimen. On that record,
there is no basis for the Board to find that, during flare-
ups or with repeated activity, the veteran experiences any 38
C.F.R. § 4.40 or 4.45 or DeLuca symptom-particularly, pain-
that is so disabling as to warrant assignment of a higher
rating.
Likewise, as ankle motion is possible-as specifically noted
by the January 2004 examiner-the veteran does not have
ankylosis of the ankle, nor does the record present a basis
for the Board to find that the veteran experiences functional
loss comparable to ankylosis (fixation) of the ankle. Hence,
evaluation of the disability under Diagnostic Code 5270 is
not appropriate and that diagnostic code provides no basis
for assignment of a rating greater than 10 percent for left
ankle impairment.
In short, the Board concludes that considering the evidence,
the rating criteria, and section 4.40 and 4.45 and DeLuca-
mandated consideration of the extent of functional loss in
the left ankle produced by such symptoms as pain, weakened
movement, excess fatigability, and incoordination, the Board
finds that, with even with consideration of the veteran's
assertions as to his ankle pain, instability, and associated
functional loss, the current 10 percent rating properly
compensates him for the extent of his functional loss in the
left ankle.
For all the foregoing reasons, the Board finds that the claim
for a rating in excess of 10 percent for residuals of left
ankle sprain must be denied. In reaching this conclusion,
the Board has considered the applicability of the benefit-of-
the- doubt doctrine; however, as the preponderance of the
evidence is against the claim, that doctrine is not
applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102;
Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).
ORDER
A rating in excess of 10 percent for residuals of left ankle
sprain is denied.
____________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs